Friday, November 30, 2012

Without an FTA, foreign investors came in and set up their factories, and exported/imported goods from Malaysia. There is really no need for Malaysia to sign Free Trade Agreements ...in fact a MOU would have been sufficient...

Now we are beginning to understand the dangers of FTAs - how it prevents Malaysian government changing laws to improve rights and benefits of workers and the public at large... Oh yes, when we pass NEW laws and/or policies to improve working and living conditions of persons in Malaysia, including workers.... FTAs allow "investors" to be able to take legal action against MALAYSIA on the grounds that it affects the 'legitimate interest' of the business. FTAs, some expect us to maintain the conditions as it is ...

The Australian senate has passed legislation to create stronger trade ties with Malaysia through a new free trade agreement.

Senators
yesterday approved the legislation to implement the agreement, which
will lead to almost all Australian goods being able to enter Malaysia
free of import duties, the Australian Associated Press reported.

The
Malaysia-Australia Free Trade Agreement will guarantee tariff-free
entry for 97.6 percent of goods exported from Australia after it comes
into force.

It will rise to 99 percent by 2017.

Malaysian exporters will enjoy duty-free entry to the Australian market.

The
opposition backed this legislation with shadow attorney-general George
Brandis saying it dated back to 2005 when former prime minister John
Howard’s government launched the negotiations.

Brandis said
Malaysia was Australia’s third largest trading partner in Asean and 10th
largest partner overall with exports of A$5 billion and imports of
A$9.1 billion in 2011-2012.

“Prominent Australian industries are
set to benefit from this new trade agreement with Malaysia, including
the Australian dairy industry,” he told the senate.

Brandis said
other Australian industries set to gain from the trade agreement include
the local automotive sector, wine, agriculture including sugar, wheat
and rice, plastics, processed food, chemical and a range of manufactured
goods.

Greens leader Christine Milne said the greens had a
long-standing position that free trade agreements were not what they
were cracked up to be.

“No matter how efficient an Australian
farmer, they cannot compete against farmers in other economies if
farmers in other economies don’t have to bear the cost of compliance
with environmental laws and standards or compliance with labour
standards.

“We cannot have free trade agreements in the future unless they take those things into account,” she added.

Tuesday, November 27, 2012

Our BN government have been entering FTAs (Free Trade Agreements) - Bilateral Investment Treaties without careful consideration - and this failure will affect Malaysia and Malaysians...

Of concern is the said Investor protection clauses/section in these agreements which open the door to foreign investors to take Malaysia to international tribunals, not in Malaysia. Yes, the investor - not the foreign State government can cause Malaysia a lot of money even when Malaysia does things for the good of the people, workers, ,,,, see earlier post: By signing FTAs with Investor Protection Clauses, Malaysia has failed Malaysians

Bilateral Investment Treaties between governments ultimately seem to benefit corporations and businesses who can now take to task governments of countries they invest in for millions of dollars...

The bringing in of new policies and laws that will benefit its people can open the doors for these foreign investors to claim great damages ... on the ground that it affects the legitimate interest of businesses...profits.

Sure corporations and businesses have NO duty to ensure people, workers, etc good, livelihood, rights, health, etc is improved - it is the duty of government.

The emerging crisis of investment treaties

[South Bulletin 69 Article]

An epidemic of international legal suits taken by companies
against governments for billions of dollars is causing public concern
and leading to reviews of investment treaties.

By Martin Khor

A growing number of international law suits has highlighted an
emerging global crisis: the nature and effects of investment treaties
signed between governments but which are allowing private companies and
investors to sue countries for millions or even billions of dollars.

The most recent cases involving investment include a US$1.8 billion
judgment against Ecuador obtained by the U.S. oil company Occidental
Petroleum, a US$2 billion suit filed against Indonesia by a UK mining
company Churchill, cases taken against Uruguay and Australia for public
health measures by tobacco companies, suits threatened against India by
several multinational companies, and even the seizure of an Argentinian
warship in a Ghana port on behalf of a U.S. investment firm.

The law suits, which have resulted in judgments totalling many
billions of dollars against governments, were taken by companies and
investors claiming that their investments including future profits had
been affected by a range of government policies, including
non-compliance with contracts or new health, environmental or economic
measures.

Most of arbitration cases are taken up in the ICSID (International
Centre for Settlement of Investment Disputes), based in the World Bank
in Washington.

The tribunal system is widely criticised for its lack of
professionalism and transparency, its conflicts of interest and the
secrecy of its cases and outcomes.

The epidemic of cases and the high losses that governments have
suffered or will potentially suffer is giving rise to grave concerns and
calls by several governments as well as public interest groups and
legal experts to review and amend the agreements that have led to the
legal suits.

The agreements are of two main types – the bilateral investment
treaties (BITS) signed between pairs of governments (of which there are
now around 3,000) and the investment chapter contained in bilateral or
regional free trade agreements (especially those involving the United
States).

Many of these agreements have “investor-to-state” dispute systems,
under which a private company or investor can directly sue governments
in an international tribunal by claiming that their property or profits
have been “expropriated” or adversely affected by a violation of
contracts or by recent policy measures.

The following are some recent cases of legal suits taken by investors against countries:

· An ICSID tribunal in October awarded a judgment for US-based
Occidental Petroleum (Oxy) against Ecuador of US $1.8 billion, its
largest ever award, in a case taken under the U.S.-Ecuador BIT. In
addition, Ecuador has to pay $589 million in backdated compound interest
and half of the costs of the tribunal, making its total penalty around
$2.4 billion. The government had annulled a contract with Oxy because
it violated a clause that the company would not sell its rights to
another firm without permission. The tribunal agreed the violation took
place but judged that the annulment was not fair and equitable
treatment to the company. (Ben Beachy, Public Citizen Global Trade
Watch)

· The Indonesian government was sued in June for $2 billion by a
London-based mining company Churchill, which claims its right to mine in
Busang (East Kalimantan) was violated when the local government revoked
the concession rights held by a local company in which it had invested.
The government is countering the Churchill case, claiming that
Churchill did not have the correct type of mining licenses. Law Minister
Amir Syamsuddin said Churchill's acquisition of a local company broke
the law as they did not report nor get approval from the regency
government and Jakarta. Two Ministers and other senior officials will
be representing Indonesia at the case in ICSID. (Straits Times,
Singapore, 18 Sept 2012)

· The tobacco company Philip Morris sued Uruguay for alleged
breaches to the Uruguay-Swiss BIT for requiring cigarette packs to
display graphic health warnings and sued Australia under the
Australia-Hong Kong BITS for requiring plain packaging for its
cigarettes. The company claims that the packaging requirements in both
countries violates its investment, including its trademark which as an
intellectual property is an investment asset.

· The Indian government has planned to review its bilateral
investment agreements after foreign telecommunication companies gave
notice that they would take up BITS cases against India after the 2G
licenses given to them were cancelled by the Supreme Court in April
2012. The company Sistema invoked the treaty between India and Russia,
while Telenor invoked the agreement with Singapore through which the
telecom firm routed its investment, according to an Indian Express
report, which also quoted a government official: “We need to relook
clauses in such treaties in order to ensure that such an eventuality
does not happen in the future again.”

· There are two known pending cases taken in international tribunals
against Vietnam. In 2010 , U.S. businessman Michael L. Mackenzie,
filed a case claiming that Vietnamese authorities failed to protect his
investments in a resort development project in Vietnam. In 2011, the
company Dialasie SAS sued Vietnam under the France-Vietnam BIT.
Dialasie had a contract with Vietnam’s social security agency to operate
a private dialysis clinic in Ho Chi Minh City but it was closed in 2006
amidst a series of disputes with local health-care authorities.
(Source: Luke Eric Peterson, IA Reports).

· In November 2012, a US energy company Lone Pine Resources sued
Canada under the investment chapter of the NAFTA (North American Free
Trade Agreement) for $250 million because the Quebec provincial
government declared a moratorium on fracking (a method of obtaining
shale gas) and also banned drilling below the St. Lawrence River, which
the company claims is a violation of its drilling permit. (Source: The
Star, Ottawa; and Globe and Mail, 15 Nov. 2012).

The ease with which investors are able to bring and win cases against
governments for such a wide range of issues is due to the nature of the
investment agreements.

First, the definition of “investment” which is the subject of the
treaties is usually very broad, covering direct investment, portfolio
investment, loans, franchises, licenses, contracts, intellectual
property and other assets. Investors can bring up cases in claiming
that their rights to any of these have been violated.

Second, the treaties grant national treatment , “fair and equitable
treatment” and investor protection to investors. The definitions of
these are so flexible that investors are able to claim their rights are
violated for a wide range of reasons.

Third, many of the treaties prevent governments from controlling or
regulating inflows and outflows of capital, and some restrict or
disallow governments from imposing performance requirements on foreign
companies.

Fourth, the treaties prohibit expropriation of the investments. The
definition of “expropriation” is very broad; it includes direct
expropriation such as takeovers of property but also indirect
expropriation including “regulatory takings”, or the implementation of
new policy measures that affect the potential revenue and profits of the
investors. Thus, investors have sued governments for changes to or
cancellation of contracts, and for health and environmental policies and
regulations.

Fifth, some of the treaties allow for investors to directly sue
governments in international tribunals, including ICSID, the
Washington-based and World Bank-linked tribunal mentioned in most
investment treaties. These cases have caused many governments to divert
scarce time and resources to defend several cases.

Sixth, the arbitration system is riddled with major weaknesses that
are not found in normal courts. In many cases, the tribunal members are
lawyers who have also acted for investors in other cases. For example,
in the case taken by Dialasie against Vietnam, the chair of the tribunal
is a European lawyer who has also worked extensively as counsel for
investors in many other cases.

According to international trade and investment expert, Chakravarthi
Raghavan: “The ICSID panels are constituted of lawyers who sometimes
are on panel, and sometimes suing for firms against governments, and
don't have any obligation to disclose conflicts of interest. It is time
that BITs and ICSID system and these quite arbitrary, 'arbitration'
panels are exposed.”

Seventh, the BITS arbitration cases are shrouded in secrecy. They
are not held in the open, and the existence or results of cases are not
officially made known.

Eighth, it is difficult for a country to exit from a BIT even if it
has decided it is against its interests, as many BITs have a “survival
clause”; the country is bound by its provisions 10-15 years after
giving notice of exiting.

The growing number of cases could also be due to the setting up of
law firms, especially in the US and Europe, that specialise in
investment disputes, and which encourage investors to take up cases in
order to profit or benefit.

The BITs as well as FTAs’ investment component have caused outrage
among public interest groups which are concerned that these treaties
prevent or punish the implementation of required health, safety,
environmental and developmental measures.

Governments, especially in developing countries, are also
increasingly concerned. Faced with a multitude of law suits, several
governments have recently taken action to review or revise their
investment treaties.

South Africa, after completing a review of its BITS, has decided not
to sign any new BITS, will attempt to exit from or re-negotiate existing
ones, and will formulate a new model BIT.

Australia, in April 2011, announced it would not agree to including
investor-state dispute settlement provisions in its BITS and free trade
agreements.

India in April 2012 announced it is reviewing its BITS, especially
their dispute resolution component, after facing the threat of suits
arising from a Supreme Court order nullifying the award of 2G contracts
to several foreign telecommunication companies.

And some Latin American countries including Ecuador, Venezuela and
Bolivia have expressed their serious concerns about BITs and announced
their exit from ICSID.

The UN Conference on Trade and Development (UNCTAD), which has been a
major promoter of BITS, is also changing its mind about the benefits of
these treaties. It now distinguishes between the normal BITS which it
calls “agreements for freedom of investors” and a new type of BITS
which it terms “investment agreements for sustainable development”, and
it is promoting the move from the first to the second type.

With so many problems arising and so many cases being taken against
countries, the review and reform of investment treaties should be
accelerated at both national and international levels.

Monday, November 26, 2012

One danger in most FTA(Free Trade Agreement) which Malaysia signs is the Investor protection clause/section, in which the right is given to the investor to take Malaysia to some international arbitration tribunal

In such “investor-state dispute settlement” (ISDS) demands becomes exposed to
international arbitration at a tribunal such as the International Centre
for the Settlement of Investment Disputes (ICSID). This means that the
investor sues the government of that country.me country.

And, by investor it can also mean a shareholder. In short, when Malaysia signs such FTA Agreements, Malaysia surrenders its right to amend laws that will improve worker rights and conditions, and even measures for the public good. The reason for the action is that this new policy, regulation or law affects the legitimate interest of the investor...Read the article below by Fifa Rahman, which also gives examples of countries that have fell victim to such clauses - having to spend millions in defence, and millions (maybe even billions) if and when these 'investors' succeed. The author looks primarily to tobacco and cigarettes - but our concern must be broader..

The irony is that such disputes are settled at usually some international arbitration in the US,etc - not in the Malaysian courts according to the Malaysian law. I believe, if there be any such disputes, it must be resolved in the Malaysian courts - or at some local independent arbitration body like the Kuala Lumpur arbitration centre. Should not that foreign investor also be accorded equality and equal protection under the Malaysian law - not some different special right. Private corporations can do what it wants - but certainly not the Malaysian government.

RISK :- If Malaysia passes laws with regard to a just living wage, laws that ensure that workers are employed as regular permanent workers until retirement (hence abolishing the practice of short-term employment contract and/or labour outsourcing)...or even effect a ban on say cigarettes, alcohol or even some dangerous medicines...or even imposes higher standards to the protection of public health/environment - then, by reason of the existence of such investor protection clauses, actions may be commenced against Malaysia in some far away arbitration body by reason that it will affect the 'legitimate interest of the investor'...or his profits...This is certainly wrong.

Australia have woken up - and is objecting to the inclusion of such “investor-state dispute settlement” (ISDS) clauses. Malaysia should do the same.

Australian New Position: Australian Parliamentary Commission’s stance is that no new
Bilateral Investment Treaties (hereinafter referred to as ‘BIT’s)
entered into by Australia will contain an alternative dispute
resolution (ADR) clause normally calling for international arbitration.

In my opinion, Malaysia should take steps to revoke any or all FTA agreements or other treaties that contain such clauses that give individual investors and Trans National Corporations the ability to take such actions against Malaysia... The government must always be FREE to do the needful for the better rights, good, health and welfare of the people in Malaysia.

MARCH 1 — The Trans-Pacific Partnership Agreement (TPPA) is an
agreement being negotiated between the US and nine countries, including
New Zealand, Singapore, Australia and Malaysia.

This week, from March 1-9, negotiators from these nine countries will
meet in Melbourne, Australia in what is known as the Melbourne round —
to discuss and negotiate provisions in the TPPA.

What is bound to be discussed — particularly by pro-health Australia
and New Zealand — are provisions in the TPPA that will negatively affect
domestic regulation of tobacco and expose parties who continue to
regulate post-signing to international tobacco litigation/arbitration,
the costs of which reach into the hundreds of millions of US dollars.

In simple terms, the TPPA basically demands that any measure to
reduce tobacco use will be “unfair and unequitable” to investors, that
some measures constitute technical barriers to trade, and that laws to
reduce tobacco use amount to “expropriation of value of investments”,
all of which breach the terms of the agreement.

So what happens upon breach?Any country that agrees to
“investor-state dispute settlement” (ISDS) demands becomes exposed to
international arbitration at a tribunal such as the International Centre
for the Settlement of Investment Disputes (ICSID). This means that the
investor sues the government of that country.

Why is this such a big deal then? Firstly, international arbitration
at ICSID or other similar international tribunals costs hundreds of
millions of US dollars. The Czech Republic, in the case of CME vs Czech
Republic, was required by the United Nations Commission on International
Trade Law (UNCITRAL) to pay the investor US$350 million (RM1,050
million), the equivalent of their entire health budget for that year.
Slovakia, however, had to pay more: in CSOB vs Slovakia, CSOB was
awarded US$867 million.

The question is: Is there a real threat of Malaysia being sued because of tobacco laws?

There are two high-profile cases currently in procedural stages at
international tribunals on tobacco — Philip Morris Asia vs Australia and
Philip Morris International vs Uruguay. In the latter, Uruguay is being
sued by Philip Morris International’s subsidiary in Switzerland, and a
small Uruguayan company called Abal Hermanos under the Swiss-Uruguay
Bilateral Investment Treaty, for having 80 per cent of their cigarette
packs covered with health warnings — the largest health warnings in the
world, and also for only allowing one variant of cigarette per brand,
such as only Dunhill Reds, but not Dunhill Greens or Blues.

The President of Uruguay, José Mujica, knew that Uruguay could not
afford the fees — so he asked his friend Mayor Mike Bloomberg of New
York for technical and financial assistance.

In
the Australian case, Philip Morris Asia, which is based in Hong Kong,
bought shares in Philip Morris Australia to prove vested interests, and
sued Australia under the Hong Kong-Australia Bilateral Investment Treaty
due to Australia’s law to introduce plain packaging of cigarettes in
the year 2012. (see picture)

So basically, if Malaysia enacts any law to reduce tobacco use, it
could be sued at the international tribunals, and face hefty penalties
that could exceed the national health budget.

Some people say that an option is simply not to regulate tobacco at
all. No public health professional in their right mind will say this is
an option at all. Malaysia is in the situation where 46 per cent of our
males from 18-65 years old smoke, and we spend RM20 billion a year
treating tobacco-related diseases.

The fear is that when we choose not to regulate to avoid expensive
tobacco arbitration, health expenditure will increase and, most
importantly, the health burden will increase. If tobacco is not
regulated, we can expect that more Malaysians will die from
tobacco-related diseases.

Australia, which is a party to the negotiations, is refusing to agree
to ISDS. In the words of Gleeson, Tienhaara and Faunce in their 2012
article in the Medical Journal of Australia: “Australia’s refusal to
consent to ISDS in the TPPA is a significant step towards limiting the
encroachment of international trade agreements into our national health
policy space and retaining our sovereign right to regulate significant
areas of public health policy.”

Malaysians must push for the exclusion of tobacco from the
application of the agreement, or at the very least, insist on no ISDS.
Tobacco lobbying is extremely strong, and only a collective and strong
voice can pressure negotiators to go pro-health.

Last week, on February 24, a tobacco industry-sponsored event was
held in Washington DC, hosted and attended by ambassadors and embassies
of TPPA negotiating countries. The event calendar can be viewed here.

According to this event calendar, the Malaysian ambassador hosted
along with his counterparts. The New Zealand ambassador, Mike Moore,
also hosted, and New Zealanders have since called for his sacking.
Australia did not attend on grounds on conflicts with their pro-health
stance.

This paragraph illustrates just how strong and influential the
tobacco industry is, and how it is highly likely at this moment that
citizens will lose unless we begin to fight for our right to health. It
also shows the importance of the TPPA to the tobacco industry. We must
urge negotiators from the Ministry of International Trade and Industry
(MITI) to discuss our concerns on tobacco and how it will affect
Malaysian health.

Saturday, November 24, 2012

"My son was
killed for a crime he did not commit…. our family has lived in shame and
neighbours never spoke to us. Whatever apology or compensation the
government promises, it is too late.”- Wang Tsai-lien, mother
of Chiang Kuo-ching who was coerced into making a confession and
subsequently executed in error in 1997 in Taiwan.1

In
January 2011, Taiwan’s Ministry of Justice admitted that Chiang
Kuo-ching, a private in the Air Force, had been executed in error in
1997 for a murder committed 15 years previously. The authorities
acknowledged that his statement “confessing” to the crime had been made
as a result of torture and that his conviction had been rushed through a
military court. The court had ignored hisallegations
of torture and his pleas of innocence. In September 2011, a military
court formally acquitted Chiang Kuo-ching and a month later Taiwan's
Ministry of Defence announced it will pay US$3.4m in compensation to
Chiang Kuo-ching’s relatives.3

Chiang Kuo-ching is not an isolated case. Across the region, as elsewhere in the world, people are sentenced to death after proceedings which fail to meet international standards of fair trial

“The law is the law but I wish Parliament would abolish the death
sentence because if a mistake is made, it would be irreversible. There
are other ways of dealing with heinous crimes.” - Former High Court and Court of Appeal Judge Datuk K.C. Vohrah, Malaysia.2

More people are executed in the Asia-Pacific region than in the rest of
the world combined. Add to this the probability that they were executed
following an unfair trial, and the gross injustice of this punishment
becomes all too clear.

Failures of justice in trials which result in an execution cannot be
rectified. In the Asia-Pacific region, where 95 per cent of the
population live in countries that retain and use the death penalty,
there is a real danger of the state executing someone in error following
an unfair trial.

We, the undersigned 79groups and organisations welcome
Malaysia’s move towards the abolition of the mandatory death penalty for drug
offences, and replacing it with jail terms.

Recently, the Minister in the
Prime Minister's Department Datuk Seri Nazri Aziz stated that Malaysia is
considering withdrawing the mandatory death sentence for drug offences and
replacing it with jail terms.(Star,21/10/2012, Death penalty may
be scrapped for drug offences). He also said he
will be moving the Malaysian Cabinet to defer the death sentences passed on 675
convicted drug traffickers in the country, while the government reviews the
death penalty for drug offences. (The Straits Times, 25/10/2012, Death knell for death penalty in
Malaysia?) This follows the statement in July 2012, when Attorney-General
Tan Sri Abdul Gani Patail said that his Chambers was working towards proposing
an amendment to the Dangerous Drugs Act 1952 to give judges the discretion of
not imposing death sentences on couriers(Malay Mail, 12/7/2012, M’sia mulls
scrapping death penalty for drug couriers). In its 2009 Universal
Periodic Review report to the United Nations Human Rights Council, Malaysia also
did declare that it was proposing to
amend "existing anti-drug trafficking legislation to reduce the maximum
sentence to life imprisonment" from the currently practised mandatory
death.

Most of the 675 persons on
death row for drug trafficking today are "drug mules", some of whom
may have even been conned. Drug kingpins are rarely caught. In Malaysia,
persons caught with a certain weight of drugs are presumed to be drug
traffickers, and the onerous burden of rebutting this presumption shifts to the
accused person. This goes against the norm in the criminal justice system,
where the burden of proving beyond a reasonable doubt that a person is guilty
is on the prosecution. There are also close to 250 Malaysians arrested as
drug mules and sentenced to death abroad, including in China and Singapore, and
Malaysia’s plea for clemency is inconsistent if it retains the death penalty.

In March 2012, it was also
revealed in Parliament by Home Minister Hishammuddin Hussein that the mandatory
death penalty has been shown to have failed to act as a deterrent. Police
statistics for the arrests of drug dealers under Section 39B of the Dangerous
Drugs Act 1952, which carries the mandatory death penalty, for the past three
years (2009 to 2011) have shown an increase. In 2009, there were 2,955 arrested
under this section. In 2010, 3,700
people were arrested, whilst in 2011, there were 3,845 arrested.(Free Malaysia Today News, 19/3/2012, Death penalty not deterring drug
trade)

69%(or 479) of the 696 waiting for
execution of their death sentences in Malaysian prisons as on Feb 22, 2011, were
for drug offences. Today, there are about 900 on death row.

No legal system in the world is
foolproof or error-free. There have been many examples of cases of miscarriage
of justice, where innocent persons have been incarcerated for many years, or
even sentenced to death. The opportunity to right a wrong is, however, not
available since death is irreversible.

SUHAKAM (Malaysian Human Rights
Commission) has also called on Malaysia to join the
other 140 UN member states to
completely abolish the death penalty. The
United Nations General Assembly
have also adopted Resolutions
in 2007, 2008 and 2010
calling for a moratorium on executions, with a view to eventually
abolishing the death penalty.

Malaysia has begun commuting
death sentence, whereby 5 Filipinos on death row had their sentenced commuted to
prison terms earlier this year.

We call for the abolition of the
death penalty in Malaysia, for an immediate moratorium on all executions
pending abolition and for the commutation of the sentences of all persons
currently on death row;

We also call on Malaysia to
ratify the Second Optional Protocol to the International Covenant on Civil and
Political Rights (ICCPR).

Wednesday, November 21, 2012

2 Issues here, one being freedom of expression not forgetting that MPs are mere representatives of the people - it is absurd that 'Bosses' are being treated this way..

Second, the issue of WHAT the government will do when cemeteries with a certain number of graves are discovered. Sometimes, graves are not just of one religion but a mixture of religion. In Temerloh, just recently some people came across a 'cemetery' with about 6 - 8 graves - (mulch-religious). Will the attitude be 'pretend it is not there' and allow the Developer to do as they please??

I believe that the the government must first have a meeting with all religious community leaders in the particular district, efforts must be made to identify family and relatives (or even the name of the person buried there because some time by reason of time names and dates cannot no longer be read)

BEST SOLUTION

Cordon of the area, be it a cemetery of many graves or just one grave, and leave it as a cemetery/grave site. Remeber, it could always be made to look good.

If movement of the graves are REALLY required, it must be done with the knowledge and approval of the respective religious communities - because different religions have different ways, ceremonies, prayers, etc ...that need to be done when a grave is re-located. - If any grave is relocated, there must be a marker/sign where the grave was - a notice to loved ones/friends/etc that may one day come looking for the graves of their loved ones of where the graves had been re-located to...

Pengerang
residents were pulled out of the designated press conference (PC) area
at the Parliament lobby when they tried to address the media about a
signature campaign to stop the forced removal of burial sites of their
ancestors.

Parliament guards pulled out NGO leader Sim Seng San,
who refused to budge at first, and later tried to do the same to his
colleague Yap Lay Yen.

“This are is only for parliamentarians. Get up,” the guard said, while tugging at Sim’s (sitting, left in photo) arm.

However, DAP’s Bakri MP Er Teck Hwa (centre in photo) stopped the guard from doing the same to Yap.

“She
is a woman, you cannot touch her,” he told the guard who was trying to
implement the new ruling by the Dewan Rakyat speaker to disallow non-Parliamentarians from holding press conferences in the designated area.

Sim
and Yap later took questions from reporters outside the designated
press conference area, but were again stopped by the guard.

“This
area is still in Parliament jurisdiction,” another Parliament guard
said, but the guard left when reporters pointed out that the speaker’s
ruling only applies to the designated area.

Sixty tombstones more than 120 years old

According to Sim, the nationwide signature campaign to protest the forced removal will be launched next month.

“We hope the people of Malaysia can help us,” he said.

According
to Yap, the Pengerang NGO coalition had done a survey of the area and
found that in the five cemeteries, 1,566 graves were to undergo forced
removal to make way for the petrochemical project.

She said that
all the graves belong to individuals with living relatives whom the
NGOs have traced, and that 60 tombstones are more than 120 years old.

She
said that while the government has informed them of the move, it is
uncertain when the move will be done or the relocation site.
Compensation has also been offered but the quantum has yet to be
determined.

“We want to know why only a few graves had to be
relocated for the Ulu Tiram-Desaru Highway but none are to be spared in
Pengerang...

Tuesday, November 20, 2012

The Human Rights Commission of Malaysia (the Commission) welcomes the adoption of the ASEAN Human Rights Declaration (AHRD) on 18 November 2012 during the ASEAN Summit in Cambodia as a positive development in the promotion and protection of human rights in the region. The Commission is greatly encouraged by the reaffirmation by the ASEAN countries of their commitment to the Universal Declaration of Human Rights (UDHR), the Charter of the United Nations, the Vienna Declaration and Programme of Action and other international human rights instruments to which ASEAN Member States are parties. The Commission notes that the AHRD covers a wide range of rights categorised separately as Civil and Political Rights, Economic, Social and Cultural Rights, the Right to Development, and the Right to Peace, all of which, while in consonance with international human rights standards, are subject to nine general principles.

While not downplaying the significance and usefulness of those general principles, the Commission is disappointed that they permit restrictions to be made on grounds wider than what are accepted internationally. More important, General Principle 7, which declares on the one hand, that all human rights are universal, indivisible, interdependent and interrelated, recognises on the other, that Member States may take into consideration their political, economic, legal, socio-cultural, and historical backgrounds in the realisation of human rights in their countries. The Commission is concerned that these principles might undermine the whole spirit of the Declaration and negate the full enjoyment and protection of human rights in the region. The Commission would also like to draw attention to Article 5 of the Vienna Declaration and Programme of Action under which it is the duty of States to promote and protect human rights and fundamental freedoms, regardless of their political, economic and cultural systems.

The Commission also regrets the Declaration was drafted with limited openness and transparency, and inadequate extended consultations with various stakeholders, including the National Human Rights Institutions (NHRIs) which were keen to contribute and anxious to ensure that the AHRD would be on a par with other regional human rights declarations.

Nonetheless, the Commission, along with the other members of the South East Asia National Human Rights Institutions Forum (SEANF), will continue to engage with the ASEAN Governments and the ASEAN Intergovernmental Commission on Human Rights (AICHR) in the process of the full and unimpeded implementation of the AHRD, consistent with international human rights standards and norms in the interest of ensuring that the rights of the region’s 600 million citizens are promoted and protected. - END – “HUMAN RIGHTS FOR ALL”

Monday, November 19, 2012

WE, the Heads of State/Government of the Member States of the
Association of Southeast Asian Nations (hereinafter referred to as
"ASEAN"), namely Brunei Darussalam, the Kingdom of Cambodia, the
Republic of Indonesia, the Lao People's Democratic Republic, Malaysia,
the Republic of the Union of Myanmar, the Republic of the Philippines,
the Republic of Singapore, the Kingdom of Thailand and the Socialist
Republic of Viet Nam, on the occasion of the 21st ASEAN Summit in Phnom
Penh, Cambodia.

REAFFIRMING our adherence to the purposes and principles of ASEAN as
enshrined in the ASEAN Charter, in particular the respect for and
promotion and protection of human rights and fundamental freedoms, as
well as the principles of democracy, the rule of law and good
governance;

REAFFIRMING FURTHER our commitment to the Universal Declaration of
Human Rights, the Charter of the United Nations, the Vienna Declaration
and Programme of Action, and other international human rights
instruments to which ASEAN Member States are parties;

REAFFIRMING ALSO the importance of ASEAN’s efforts in promoting human
rights, including the Declaration of the Advancement of Women in the
ASEAN Region and the Declaration on the Elimination of Violence against
Women in the ASEAN Region;

CONVINCED that this Declaration will help establish a framework for
human rights cooperation in the region and contribute to the ASEAN
community building process;

HEREBY DECLARE AS FOLLOWS:

GENERAL PRINCIPLES

1. All persons are born free and equal in dignity and rights. They
are endowed with reason and conscience and should act towards one
another in a spirit of humanity.

2. Every person is entitled to the rights and freedoms set forth
herein, without distinction of any kind, such as race, gender, age,
language, religion, political or other opinion, national or social
origin, economic status, birth, disability or other status.

3. Every person has the right of recognition everywhere as a person
before the law. Every person is equal before the law. Every person is
entitled without discrimination to equal protection of the law.

4. The rights of women, children, the elderly, persons with
disabilities, migrant workers, and vulnerable and marginalised groups
are an inalienable, integral and indivisible part of human rights and
fundamental freedoms.

5. Every person has the right to an effective and enforceable remedy,
to be determined by a court or other competent authorities, for acts
violating the rights granted to that person by the constitution or by
law.

6. The enjoyment of human rights and fundamental freedoms must be
balanced with the performance of corresponding duties as every person
has responsibilities to all other individuals, the community and the
society where one lives. It is ultimately the primary responsibility of
all ASEAN Member States to promote and protect all human rights and
fundamental freedoms.

7. All human rights are universal, indivisible, interdependent and
interrelated. All human rights and fundamental freedoms in this
Declaration must be treated in a fair and equal manner, on the same
footing and with the same emphasis. At the same time, the realisation of
human rights must be considered in the regional and national context
bearing in mind different political, economic, legal, social, cultural,
historical and religious backgrounds.

8. The human rights and fundamental freedoms of every person shall be
exercised with due regard to the human rights and fundamental freedoms
of others. The exercise of human rights and fundamental freedoms shall
be subject only to such limitations as are determined by law solely for
the purpose of securing due recognition for the human rights and
fundamental freedoms of others, and to meet the just requirements of
national security, public order, public health, public safety, public
morality, as well as the general welfare of the peoples in a democratic
society.

9. In the realisation of the human rights and freedoms contained in
this Declaration, the principles of impartiality, objectivity,
non-selectivity, non-discrimination, non-confrontation and avoidance of
double standards and politicisation, should always be upheld. The
process of such realisation shall take into account peoples’
participation, inclusivity and the need for accountability.

CIVIL AND POLITICAL RIGHTS

10. ASEAN Member States affirm all the civil and political rights in
the Universal Declaration of Human Rights. Specifically, ASEAN Member
States affirm the following rights and fundamental freedoms:

11. Every person has an inherent right to life which shall be
protected by law. No person shall be deprived of life save in accordance
with law.

12. Every person has the right to personal liberty and security. No
person shall be subject to arbitrary arrest, search, detention,
abduction or any other form of deprivation of liberty.

13. No person shall be held in servitude or slavery in any of its
forms, or be subject to human smuggling or trafficking in persons,
including for the purpose of trafficking in human organs.

14. No person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.

15. Every person has theright to freedom of movement and residence
within the borders of each State. Every person has the right to leave
any country including his or her own, and to return to his or her
country.

16. Every person has the right to seek and receive asylum in another
State in accordance with the laws of such State and applicable
international agreements.

17. Every person has the right to own, use, dispose of and give that
person’s lawfully acquired possessions alone or in association with
others. No person shall be arbitrarily deprived of such property.

18. Every person has the right to a nationality as prescribed by law.
No person shall be arbitrarily deprived of such nationality nor denied
the right to change that nationality.

19. The family as the natural and fundamental unit of society is
entitled to protection by society and each ASEAN Member State. Men and
women of full age have the right to marry on the basis of their free and
full consent, to found a family and to dissolve a marriage, as
prescribed by law.

20. (1) Every person charged with a criminal offence shall be
presumed innocent until proved guilty according to law in a fair and
public trial, by a competent, independent and impartial tribunal, at
which the accused is guaranteed the right to defence.

(2) No person shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal
offence, under national or international law, at the time when it was
committed and no person shall suffer greater punishment for an offence
than was prescribed by law at the time it was committed.

(3) No person shall be liable to be tried or punished again for an
offence for which he or she has already been finally convicted or
acquitted in accordance with the law and penal procedure of each ASEAN
Member State.

21. Every person has the right to be free from arbitrary interference
with his or her privacy, family, home or correspondence including
personal data, or to attacks upon that person’s honour and reputation.
Every person has the right to the protection of the law against such
interference or attacks.

22. Every person has the right to freedom of thought, conscience and
religion. All forms of intolerance, discrimination and incitement of
hatred based on religion and beliefs shall be eliminated.

23. Every person has the right to freedom of opinion and expression,
including freedom to hold opinions without interference and to seek,
receive and impart information, whether orally, in writing or through
any other medium of that person’s choice.

24. Every person has the right to freedom of peaceful assembly.

25. (1) Every person who is a citizen of his or her country has the
right to participate in the government of his or her country, either
directly or indirectly through democratically elected representatives,
in accordance with national law.

(2) Every citizen has the right to vote in periodic and genuine
elections, which should be by universal and equal suffrage and by secret
ballot, guaranteeing the free expression of the will of the electors,
in accordance with national law.

ECONOMIC, SOCIAL AND CULTURAL RIGHTS

26. ASEAN Member States affirm all the economic, social and cultural
rights in the Universal Declaration of Human Rights. Specifically, ASEAN
Member States affirm the following:

27. (1) Every person has the right to work, to the free choice of
employment, to enjoy just, decent and favourable conditions of work and
to have access to assistance schemes for the unemployed.

(2) Every person has the right to form trade unions and join the
trade union of his or her choice for the protection of his or her
interests, in accordance with national laws and regulations.

(3) No child or any young person shall be subjected to economic and
social exploitation. Those who employ children and young people in work
harmful to their morals or health, dangerous to life, or likely to
hamper their normal development, including their education should be
punished by law. ASEAN Member States should also set age limits below
which the paid employment of child labour should be prohibited and
punished by law.

28. Every person has the right to an adequate standard of living for himself or herself and his or her family including:

a. The right to adequate and affordable food, freedom from hunger and access to safe and nutritious food;
b. The right to clothing;
c. The right to adequate and affordable housing;
d. The right to medical care and necessary social services;
e. The right to safe drinking water and sanitation;
f. The right to a safe, clean and sustainable environment.

29. (1) Every person has the right to the enjoyment of the highest
attainable standard of physical, mental and reproductive health, to
basic and affordable health-care services, and to have access to medical
facilities.

(2) The ASEAN Member States shall create a positive environment in
overcoming stigma, silence, denial and discrimination in the prevention,
treatment, care and support of people suffering from communicable
diseases, including HIV/AIDS.

30. (1) Every person shall have the right to social security,
including social insurance where available, which assists him or her to
secure the means for a dignified and decent existence.

(2) Special protection should be accorded to mothers during a
reasonable period as determined by national laws and regulations before
and after childbirth. During such period, working mothers should be
accorded paid leave or leave with adequate social security benefits.

(3) Motherhood and childhood are entitled to special care and
assistance. Every child, whether born in or out of wedlock, shall enjoy
the same social protection.

31. (1) Every person has the right to education.

(2) Primary education shall be compulsory and made available free to
all. Secondary education in its different forms shall be available and
accessible to all through every appropriate means. Technical and
vocational education shall be made generally available. Higher education
shall be equally accessible to all on the basis of merit.

(3) Education shall be directed to the full development of the human
personality and the sense of his or her dignity. Education shall
strengthen the respect for human rights and fundamental freedoms in
ASEAN Member States. Furthermore, education shall enable all persons to
participate effectively in their respective societies, promote
understanding, tolerance and friendship among all nations, racial and
religious groups, and enhance the activities of ASEAN for the
maintenance of peace.

32. Every person has the right, individually or in association with
others, to freely take part in cultural life, to enjoy the arts and the
benefits of scientific progress and its applications and to benefit from
the protection of the moral and material interests resulting from any
scientific, literary or appropriate artistic production of which one is
the author.

33. ASEAN Member States should take steps, individually and through
regional and international assistance and cooperation, especially
economic and technical, to the maximum of its available resources, with a
view to achieving progressively the full realisation of economic,
social and cultural rights recognised in this Declaration.

34. ASEAN Member States may determine the extent to which they would
guarantee the economic and social rights found in this Declaration to
non-nationals, with due regard to human rights and the organisation and
resources of their respective national economies.

RIGHT TO DEVELOPMENT

35. The right to development is an inalienable human right by virtue
of which every human person and the peoples of ASEAN are entitled to
participate in, contribute to, enjoy and benefit equitably and
sustainably from economic, social, cultural and political development.
The right to development should be fulfilled so as to meet equitably the
developmental and environmental needs of present and future
generations. While development facilitates and is necessary for the
enjoyment of all human rights, the lack of development may not be
invoked to justify the violations of internationally recognised human
rights.

36. ASEAN Member States should adopt meaningful people-oriented and
gender responsive development programmes aimed at poverty alleviation,
the creation of conditions including the protection and sustainability
of the environment for the peoples of ASEAN to enjoy all human rights
recognised in this Declaration on an equitable basis, and the
progressive narrowing of the development gap within ASEAN.

37. ASEAN Member States recognise that the implementation of the
right to development requires effective development policies at the
national level as well as equitable economic relations, international
cooperation and a favourable international economic environment. ASEAN
Member States should mainstream the multidimensional aspects of the
right to development into the relevant areas of ASEAN community building
and beyond, and shall work with the international community to promote
equitable and sustainable development, fair trade practices and
effective international cooperation.

RIGHT TO PEACE

38. Every person and the peoples of ASEAN have the right to enjoy
peace within an ASEAN framework of security and stability, neutrality
and freedom, such that the rights set forth in this Declaration can be
fully realised. To this end, ASEAN Member States should continue to
enhance friendship and cooperation in the furtherance of peace, harmony
and stability in the region.

COOPERATION IN THE PROMOTION AND PROTECTION OF HUMAN RIGHTS

39. ASEAN Member States share a common interest in and commitment to the
promotion and protection of human rights and fundamental freedoms which
shall be achieved through, inter alia, cooperation with one another as
well as with relevant national, regional and international
institutions/organisations, in accordance with the ASEAN Charter.

40. Nothing in this Declaration may be interpreted as implying for
any State, group or person any right to perform any act aimed at
undermining the purposes and principles of ASEAN, or at the destruction
of any of the rights and fundamental freedoms set forth in this
Declaration and international human rights instruments to which ASEAN
Member States are parties.

Adopted by the Heads of State/Government of ASEAN Member States at Phnom
Penh, Cambodia, this Eighteenth Day of November in the Year Two
Thousand and Twelve, in one single original copy in the English
Language.

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